Technically, my job defending anyone is to force the State to prove their guilt beyond a reasonable doubt. If I have personal doubts as to my client’s innocence, I never even breathe the word “innocent.” Instead, I remind the jury to evaluate the State’s case; the defendant is presumed innocent by the system. The funny part is that I’ve rarely had a client admit they were guilty. Even if it looked pretty obvious, they maintained their innocence. And the more you get into a case, the murkier facts often become. So many times, I’m not sure who’s an innocent or guilty person.

Maybe the best way to let you know how this feels is to tell you a story of a case I tried several years ago.

It involved a young man, 17 years old, who was married. They were both poor and struggled to make ends meet. One night when the boy–I’ll call him Jim–came home after looking for a job during the day, he found his wife having sex with another man on the couch of their apartment.

Jim erupted in anger and pain. First, he kicked the other man out then turned on the woman. A fight started and he strangled her to death by choking her with his hands. That was gruesome enough but afterward, to divert attention from him–the obvious culprit–he stripped her body, spray-painted it in gang graffiti, and left her in the middle of an intersection to make it look like a gang crime.

After having been charged with Murder in the 1st degree, he was certified and transferred to adult court where I met him. Because the crime was so heinous and the proseutor’s case was so strong, they didn’t offer Jim any kind of a plea bargain. Like any person looking at life imprisonment, Jim found it hard to plead guilty, even though he eventually admitted he killed her. We set the case for trial, which was his right to demand.

From my standpoint as his lawyer, sometimes the charging decision made by the prosecutor does not fit the crime. In other words, maybe the accused person is not guilty of Assault 1 but is guilty of Assault 3, a lesser crime with a shorter penalty. That was the strategy in Jim’s case. I had two goals: maybe the jury would have sympathy for the young guy and convict him of something less serious or the facts, as determined in a trial through the witnesses, wouldn’t warrant the full Murder 1 conviction. So, we launched into the trial with this crime of the heart.

When the Medical Examiner who’d performed the autopsy on the victim testified, he broke the case wide open–to Jim’s favor.

Since I hate to write lengthy blogs, I’ll pause for now and continue the story with my next one.

The post How can you defend a guilty person!? Part 1 appeared first on Colin T. Nelson.

Of course, in any lawyer/client relationship the people involved will determine who makes the decisions.  However, in criminal cases there are two main decisions that only the client can make—

1.  The decision to plead guilty or to demand a trial.  Not only is this legally and ethically correct, but it makes common sense also: only the defendant knows for certain if he committed the crime or not.  Therefore, he should be the one to make the decision to plead guilty.

Stemming from this, the client also has the decision to authorize his lawyer to negotiate with the prosecutor for the possibility of settling the case with a plea of guilty to some less serious offense.  It’s known as “plea bargaining” and, at the end of any negotiations, once again, it’s the decision of the defendant to plead guilty to the less serious charge or to reject the offer and go to trial.

2.  The defendant also makes the decision, if he wants a trial, that it be heard by a jury or by a judge without a jury.  This choice comes from the Bill of Rights in the Constitution that gives an accused the right to “a jury of his peers.”  Therefore, the defendant makes this decision.

In my many years of representing defendants, I always give them these decisions.  Often, a client will ask me if they should plead guilty or not—requiring me to make the decision.  I’ve never done that.  I always force them to confront the case and make the decision.  After all, they know if they’re guilty or not—I never know for sure.

When it comes to a jury or a judge for trial, I can offer a lot of advice to a defendant.  For instance, several years ago, I represented a young man who had been charged with first degree murder and transferred to adult court.  He was facing a life sentence without parole—he’d never get out of prison before he died.  He was the accomplice in a brutal, senseless execution of two people who were robbed for money.

When he asked me about a jury or a judge, I suggested that he consider going with a judge.  I was worried that a jury would be so offended by the facts of the case (even though my client was not the shooter) they would react by convicting him rather than weighing the evidence of his minor role in the murders.  A judge who had heard dozens of horrible cases like this one, might be more willing to look deeper at the legal issues involved.

My client agreed, he waived a jury, and we tried the case before a judge.

The judge found the young man guilty but of a reduced degree of homicide.  He still had to go to prison but only for about eight years.  In that case, the defendant’s decision worked to his benefit.

On the other hand, if a defendant tells me he did the crime but still wants a trial, I always suggest a jury—there’s a small chance the jury might feel sorry for the accused and give him a break.

The post Who Decides–Client or Lawyer? appeared first on Colin T. Nelson.

What is a plea bargain?  Does it lead to justice?

After more than thirty years of work as a prosecutor and a defense lawyer, I’ve participated in thousands of plea bargains.  What is a plea bargain are they fair to everyone?

Once a person is charged with a crime, they have two choices:

1.  They can plead not guilty and have a jury trial.

2.  The accused person can take a plea bargain and admit their guilt to some crime.

It’s estimated that about 97% of criminal cases are settled short of going to trial by the defendant accepting a plea bargain and saying, “I did it.  I’m guilty.” Why wouldn’t they go to trial?  Here’s another interesting statistic that leads to plea bargains: of the cases that go to trial, about 90% of the defendants are found guilty by a jury.

To plea bargain means the prosecutor will offer some less serious charge or less prison time or less probation in order to encourage the accused person to plead guilty and not go to trial.  Almost always, it means the defendant pleads guilty to something less than he may have actually committed.  Why would the prosecutor do this?

Because even though they win about 90% of the time, they don’t win all the time.  So, the prosecutor may offer a plea bargain to assure a conviction, particularly if the case is weak and the prosecutor fears a jury may find the defendant not guilty.  Also, trials are expensive and difficult.  Usually money’s not a big factor, but it does play a part.  What if the prosecutor knows his star witness isn’t sure about the identification of the defendant?  What if a critical witness is missing?  What if the investigating cop has accidentally gone out of town on vacation the week of the trial?  All these factors may play a part in the prosecutor’s decision to offer a plea bargain.

Why would the defendant accept a plea bargain?  His lawyer will review the evidence the government has against him and explain that 90% of the time, juries convict.  So, the question becomes: do you want to take a chance on being convicted by the jury and receiving the maximum prison sentence, or would you like to plead guilty to a guaranteed, shorter sentence?  Most defendants choose to plea bargain.

Should the defendant plead guilty if they’re innocent?  No.  However, I have been involved in cases where it wasn’t certain that the defendant was guilty, but he chose to plea bargain to assure himself of probation rather than prison, for instance.

Is it fair to victims and the community?  Maybe not, but a jury trial does not guarantee that even guilty people will be found guilty.  For a victim, knowing that the perpetrator will be sentenced for a crime may be more reassuring that getting the last ounce of justice out of him.

What do you think?

The post Should We Allow Plea Bargains in Criminal Cases? appeared first on Colin T. Nelson.